New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. TOMMY G. BENHAM
Court:TSC
Attorneys:
Jeffrey A. DeVasher (on appeal) and Jodie A. Bell (at trial),
Assistant Public Defenders, Nashville, Tennessee, for the appellant,
Tommy G. Benham.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Jennifer L. Bledsoe, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee.
Judge: BIRCH
First Paragraph:
Tennessee Code Annotated section 40-35-202(a) requires that the State
notify the defendant of its intent to seek enhanced punishment. We
accepted this cause in order to decide whether the State complied with
this statutory mandate. The trial court ruled that the State's
response to the defendant's discovery request met the statutory
requirement and therefore, permitted the State to seek enhanced
punishment outside of Range I. The Court of Criminal Appeals
affirmed. On consideration, we conclude that the State did not meet
the notice requirement. Accordingly, we reverse the Court of Criminal
Appeals and remand this case to the trial court for re-sentencing.
http://www.tba.org/tba_files/TSC/benhamtommy.wpd

CAROLYN STOVALL, ET AL. v. LOIS E. CLARKE, M.D., ET AL.
Court:TSC
Attorneys:
Rose P. Cantrell, R. Blake Menzel, and George A. Dean, Nashville,
Tennessee, for the appellant, Lois E. Clarke, M.D.
Joe Bednarz, Sr., and Joe Bednarz, Jr., Nashville, Tennessee, for the
appellee, Carolyn Stovall.
Phillip North, Michael F. Jameson, and M. Todd Sandahl, Nashville,
Tennessee, for the appellee, Robert W. McCain, M.D.
Judge: ANDERSON
First Paragraph:
We granted review in this medical malpractice case to address whether
the plaintiff, Carolyn Stovall, established a genuine issue of
material fact as to the recognized standard of professional practice
in the community in which the defendants, Dr. Lois E. Clarke and Dr.
Robert McCain, practiced or in a similar community. The trial court
granted summary judgment to the defendants and later denied the
plaintiff's motion to alter or amend the summary judgments. On
appeal, the Court of Appeals reversed the grant of summary judgment to
Dr. Clarke but affirmed the grant of summary judgment to Dr. McCain.
After reviewing the record and the applicable authority, we hold that
the Court of Appeals correctly determined that the trial court erred
in granting summary judgment to Dr. Clarke. We further conclude that
the trial court erred in denying the plaintiff's motion to alter or
amend the grant of summary judgment to Dr. McCain. Accordingly, the
judgment of the Court of Appeals is affirmed in part and reversed in
part, and the case is remanded to the trial court for further
proceedings.
http://www.tba.org/tba_files/TSC/stovallc.wpd

TONY WILLIS Et Al. v. TENNESSEE DEPARTMENT OF CORRECTION
CORRECTED OPINION
Court:TSC
Attorneys:
Brian Dunigan, Goodlettsville, Tennessee, for the appellant, Edward
Tharpe.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Michael W. Catalano, Associate Solicitor General,
for the appellee, Tennessee Department of Correction.
Judge: BARKER
First Paragraph:
The issue in this case is the proper standard to be applied to motions
to dismiss petitions for common-law writ of certiorari in prison
disciplinary proceedings. This appeal involves a prisoner who was
charged with and convicted of the disciplinary violation of attempted
escape. The prisoner filed a petition for a common-law writ of
certiorari in the Chancery Court for Davidson County challenging the
action of the disciplinary board arguing that it was illegal,
arbitrary, and excessively punitive. The chancery court granted the
Department of Correction's motion to dismiss for failure to state a
claim because the process provided to the petitioner was commensurate
with the sanctions imposed upon him, and therefore, there was no
violation or deprivation of due process. The majority of the Court of
Appeals affirmed the trial court's judgment, with Judge Koch
dissenting. We granted Petitioner's request for permission to appeal,
and after conducting our own de novo review of the record, we hold
that the petitioner did state a claim for relief under the common-law
writ of certiorari because his petition alleged that the disciplinary
board failed to follow its own disciplinary guidelines and that the
petitioner was substantially prejudiced thereby. At the same time, we
agree with the Department of Correction that the petitioner did not
state a claim for relief under the due process clause of the United
States Constitution or the Tennessee Constitution. Accordingly, the
decision of the Court of Appeals is reversed in part, affirmed in
part, and the case is remanded to the trial court for further
proceedings.
CORRECTED OPINION
http://www.tba.org/tba_files/TSC/willist.wpd

THOMAS A. BRONSON, JR., ET AL. v. HORACE RICKY UMPHRIES, ET AL. HORACE
RICKY UMPHRIES, ET AL, v. NORFOLK SOUTHERN RAILWAY COMPANY PAUL S.
SCHRIER, ET AL v. NORFOLK SOUTHERN RAILWAY COMPANY, ET AL
Court:TCA
Attorneys:
John D. Richardson, Teresa A. Boyd, For Appellants, Horace Ricky
Umphries, As Administrator of the Estate of Nicholas L. Umphries,
Deceased, Horace Ricky Umphries, Individually, and Julia Ann Umphries,
Individually
James H. Wettermark, Birmingham, Alabama; Stephen R. Leffler, Memphis,
For Appellants, Thomas M. Bronson, Jr., Deborah J. Bronson,and Matthew
M. Bronson
S. Russell Headrick, Jennifer Ziegenhorn, Memphis, For Appellants,
Paul A. Schrier, Individually, and David Schrier's Appeal
Everett B. Gibson, Ralph T. Gibson, Scott B. Peatross, Memphis, For
Appellee, Norfolk Southern Railway Company
Judge: CRAWFORD
First Paragraph:
This appeal is from judgments on jury verdicts in a wrongful death
case and personal injury cases resulting from a collision of a freight
train with a vehicle. Suits were filed for the wrongful death and
personal injury claims against the railroad, and the passengers in the
vehicle also sued the owner and driver of the vehicle. The cases were
consolidated for trial, and the jury returned a verdict for defendant
railroad in all cases. The jury also returned a verdict awarding
damages for plaintiffs' in their suit against the driver and owner of
the vehicle. Judgments were entered on the jury verdicts, and all
plaintiffs appealed. We affirm.
http://www.tba.org/tba_files/TCA/bronsont.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. PORTIA ANN
LETNEY BUTLER, ET AL.
Court:TCA
Attorneys:
Roger Stanfield, Jackson, For Appellant, William Butler
Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver,
Assistant Attorney General, Nashville, For Appellee, State of
Tennessee Department of Children's Services
Judge: CRAWFORD
First Paragraph:
Department of Children's Services filed petition to terminate parental
rights of biological mother and father to dependent and neglected
minor child based on several grounds, including abandonment.
Department later amended its petition to include an additional ground
for termination of father's parental rights, citing T.C.A. S
36-1-113(g)(6). Juvenile court held two separate hearings on
Department's petition. As part of the second hearing, mother
consented to termination of her parental rights as to minor child.
Upon conclusion of hearings, juvenile court entered order terminating
mother and father's parental rights, finding grounds for termination
of father's rights, and that termination was in the child's best
interests. Father appeals. We affirm.
http://www.tba.org/tba_files/TCA/butler.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. CHESTER F.
COLE, ET AL.
Court:TCA
Attorneys:
Michael E. Rasnake, Jackson, Tennessee, for the Appellant, Chester F.
Cole
Paul G. Summers, Attorney General and Reporter, and Elizabeth C.
Driver, Assistant Attorney General, Nashville, Tennessee, for the
Appellee, State of Tennessee Department of Children's Services
Judge: GODDARD
First Paragraph:
This is a termination of parental rights case. The father appeals
from the order of the juvenile court terminating parental rights to
his three children. Specifically, the father asserts that the Trial
Court failed to find, by clear and convincing evidence, that
termination of his parental rights was in the best interest of the
children. Because we find clear and convincing evidence in the record
to support the Trial Court's findings, we affirm.
http://www.tba.org/tba_files/TCA/colech.wpd

KATHLEEN ANNE EARLEY v. ROBERT KEITH EARLEY
Court:TCA
Attorneys:
David E. Caywood, Laurie W. Hall, Memphis, For Appellant, Kathleen
Anne Earley Earley
Michael L. Robb, Dawn Davis Carson, Susan T. Hunt, Memphis, For
Appellee, Robert Keith Earley
Judge: CRAWFORD
First Paragraph:
In this divorce case, the final decree granting wife a divorce made a
division of marital property but failed to include as part of the
marital estate several expenditures made by the husband. Wife asserts
that such expenditures constitute a dissipation of assets by the
husband and should have been included as part of the marital property.
Wife appeals. We affirm.
http://www.tba.org/tba_files/TCA/earleyk.wpd

JOANNE HUNTER, ET AL. v. RICKY JACKSON
Court:TCA
Attorneys:
Jeffrey L. Stimpson, Munford, Tennessee, for the Appellants, Joanne
Hunter and husband, Robert Hunter.
William C. Cole, Millington, Tennessee, for the Appellee, Ricky
Jackson.
Judge: FARMER
First Paragraph:
The Plaintiffs appeal the judgment of the trial court contending that
the award of compensatory damages was inadequate and that the trial
court erred in failing to award punitive damages. Plaintiffs further
contend the trial court erred in failing to award the full amount of
their discretionary costs. We affirm the award of damages and modify
the order of the trial court to the extent that Plaintiffs are awarded
the full amount of their discretionary costs.
http://www.tba.org/tba_files/TCA/hunterj.wpd

ROBERT D. PELTS V. INTERNATIONAL MEDICAL SERVICES CORP., HUGH A.
HINES, JR., CARLTON SMITH, AND BERNARD TIBBETTS
Court:TCA
Attorneys:
Carlton Smith, appellant, Memphis, Tennessee, pro se (Notice of Appeal
filed by Carlton Smith on behalf of Carlton Smith, International
Medical Services Corp. and Bernard Tibbetts)
James H. Kee, Memphis, Tennessee, for the appellee, Robert D. Pelts.
Judge: KIRBY
First Paragraph:
This case involves specific performance of a contract to sell real
property. A medical services corporation was formed by three
individuals. One founder received a majority of the stock of the
corporation and became the chairman of the corporation's board of
directors. The other two founders were minority shareholders. The
corporation purchased a certain piece of real property. The
corporation then filed bankruptcy. After the bankruptcy was
discharged, the majority shareholder, the chairman of the board of
directors of the corporation, convened a shareholders' meeting that
was not attended by the other two founders of the corporation. The
chairman elected himself president of the corporation and authorized
himself to sell the realty. The now-president then entered into a
contract to sell the property to a purchaser. He subsequently
convened a meeting of the board of directors of the corporation and
installed two new board members. The new board ratified the contract
for the sale of the land to the purchaser. The two remaining original
owners of the company asserted that the president of the corporation
had no legal ability to contract to sell the land because he
fraudulently obtained his majority ownership of the company. The
purchaser filed a lawsuit against the corporation and the shareholders
for specific performance of the contract for sale of the land, and
then moved for summary judgment. The trial court granted summary
judgment to the purchaser and ordered the sale of the land. On
appeal, the minority stockholder argues that the trial court erred for
a number of reasons. We affirm, holding that the minority
shareholder, proceeding pro se, cannot represent the corporation, and
finding no error in the trial court's decision as it relates to the
minority shareholder.
http://www.tba.org/tba_files/TCA/peltsrd.wpd

CHRISTOPHER G. RYAN V. JAMES W. SURPRISE AND JOHNSON, GRUSIN, KEE &
SURPRISE
Court:TCA
Attorneys:
Richard Glassman and Douglas Hanson, Memphis, Tennessee, for the
appellant, James W. Surprise and Johnson, Grusin, Kee & Surprise.
R. Sadler Bailey and Christopher M. Robinson, Memphis, Tennessee, for
the appellee, Christopher G. Ryan.
Judge: KIRBY
First Paragraph:
This case involves discovery sanctions. The plaintiff sued the
defendants, a lawyer and his law firm, for legal malpractice. The
plaintiff requested certain documents from the defendants at least
three times, which were not produced. The trial court ordered
production of the documents at a deposition. The documents were not
produced at the deposition. Twenty-eight days after the deposition,
on the eve of a hearing on the defendants' alleged discovery abuses,
the documents were produced. In response to the plaintiff's request
for sanctions, the trial court ordered that the defendants pay the
plaintiff's attorney a monetary sanction. The defendants appeal,
arguing that the imposition of the sanction was an abuse of
discretion, because there was no evidence indicating the amount of
attorney time spent on the alleged discovery abuse and, therefore, no
evidentiary basis for the amount of the sanction. We vacate the order
of the trial court and remand for further proceedings, because the
record does not support the trial court's award.
http://www.tba.org/tba_files/TCA/ryancg.wpd

SHELBY COUNTY HEALTH CARE CORPORATION, d/b/a REGIONAL MEDICAL CENTER
v. ALLSTATE INSURANCE COMPANY v. WILLIAM GARY HOLT, GARY EUBANKS AND
ASSOCIATES LAW FIRM, and TERESA STIVERS
Court:TCA
Attorneys:
John S. Golwen, John W. Campbell, Memphis, TN, for Appellants
John D. Richardson, Teresa A. Boyd, Memphis, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This is an interlocutory appeal by the third party defendants
challenging the trial court's decision that the state of Tennessee has
personal jurisdiction over them. For the following reasons, we affirm
the portion of the trial court's ruling with respect to Teresa Stivers
and reverse with respect to William Holt and the Gary Eubanks and
Associates Law Firm.
http://www.tba.org/tba_files/TCA/shelbyhc.wpd

TROY ALLEN THOMPSON v. ELISA CONNELL HULBERT
Court:TCA
Attorneys:
David A. McLaughlin and Gail R. Sevier, Memphis, Tennessee, for the
appellant, Troy Allen Thompson.
Paul G. Summers, Attorney General and Reporter, and Kim Beals,
Assistant Attorney General, Nashville, Tennessee, for the appellee,
State of Tennessee.
Judge: KIRBY
First Paragraph:
This case involves a constitutional challenge to the Tennessee Child
Support Guidelines, Tenn. Comp. R. & Regs. 1240-2-4. In our initial
Opinion in this case, we held that the challenged guidelines were
unconstitutional because that they were violative of the equal
protection guarantees of the federal and state constitutions. The
Supreme Court of Tennessee granted certiorari and remanded the case to
this Court for reconsideration in light of the Supreme Court's recent
decision in Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003). In light
of Gallaher, we must conclude that there is no constitutional defect
in the challenged child support guideline provisions. Consequently,
we affirm the child support award ordered by the trial court.
http://www.tba.org/tba_files/TCA/thompsnt.wpd

SUSAN JOHNSON WHITEHURST, M.D., A/K/A DR. SUSAN JOHNSON, AND WILLIAM
WHITEHURST, JR. v. MARTIN MEDICAL CENTER, P.C., SUSAN LOWRY, M.D.,
ANNA HOPLA, M.D., WAL-MART STORES, INC., CHRISTY THOMPSON, CASEY
VERNON, JOYCE HAYES, JOHN DOES A, B, AND C, AND JANE DOES A, B, AND C
Court:TCA
Attorneys:
J. Houston Gordon, Covington, Tennessee, for the appellant, Susan
Johnson Whitehurst, M.D., a/k/a Dr. Susan Johnson.
W. O. Luckett, Jr., and Lorrie K. Ridder, Memphis, Tennessee, for the
appellees, Wal-Mart Stores, Inc., Christy Thompson, Casey Vernon, and
Joyce Hayes.
Judge: KIRBY
First Paragraph:
This is a defamation case. The plaintiff is an
obstetrician/gynecologist who practices in a largely rural area. The
individual defendants are pharmacists who work at Wal-Mart stores in
that area. In October 1997, one of the pharmacists received a phone
call from her sister, another physician in the area. The sister told
the pharmacist that the plaintiff obstetrician/gynecologist had
contracted the HIV virus and was sending letters to her patients to
inform them of that fact. The pharmacist, a former patient of the
plaintiff, repeated the information to her co-workers. Several
Wal-Mart employees, including the defendants, repeated the information
about the plaintiff to others. The information was false. When the
plaintiff learned of the spread of the false rumors, she sued the
defendants for defamation. After a lengthy trial, the jury found in
favor of the defendants. The plaintiff now appeals, asserting, inter
alia, that the trial court erred in admitting evidence that was
irrelevant or otherwise improper, and in approving the jury verdict.
We affirm, finding that the trial court did not err in the admission
of evidence, and that material evidence supports the jury's verdict.
http://www.tba.org/tba_files/TCA/whitehu.wpd

STATE OF TENNESSEE v. DEWAYNE CHAMBERS
Court:TCCA
Attorneys:
Roger Eric Nell, District Public Defender; and Russel A. Church,
Assistant District Public Defender, for the appellant, Dewayne
Chambers.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and B. Dent Morriss, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
A Robertson County jury convicted the defendant, Dewayne Chambers, of
kidnapping and rape. The trial court imposed concurrent sentences of
three years for the kidnapping conviction and eight years for the rape
conviction to be served in the Department of Correction. On appeal,
the defendant contends the trial court erred in denying alternative
sentencing. We affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/chambers.wpd

STEVEN RAY CHANCE v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Eric K. Lockert, Ashland City, Tennessee, for the appellant, Steven
Ray Chance.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Robert S. Wilson, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner appeals the denial of his post-conviction relief
petition following his nolo contendere pleas to aggravated burglary,
aggravated assault, and evading arrest. He contends his trial counsel
did not provide him with effective assistance when he entered into the
plea agreement. We affirm the judgment of the post-conviction court.
http://www.tba.org/tba_files/TCCA/chance.wpd

ANDREW COLE v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Richard W. Vaughn, Jr., Milan, Tennessee, for the Appellant, Andrew
Cole.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General;
Garry G. Brown, District Attorney General; and Larry Hardister,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Andrew Cole, appeals the dismissal of his petition for
post-conviction relief by the Gibson County Circuit Court. Cole is
currently incarcerated as a result of his jury convictions for
attempted first degree murder, attempted second degree murder,
aggravated assault, and felon in possession of a firearm. On appeal,
Cole raises the issues of: (1) whether he received ineffective
assistance of counsel; (2) whether the trial court erred in refusing
to appoint "new counsel" for him at trial; and (3) whether he was
improperly sentenced as a multiple offender. After review of the
issues, we affirm the dismissal of the petition.
http://www.tba.org/tba_files/TCCA/colea.wpd

DAVID FRANKLIN FORRESTER v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
William B. Lockert, III, District Public Defender; and Richard D.
Taylor, Jr., Assistant District Public Defender, for the appellant,
David Franklin Forrester.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Lisa C. Donegan, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner appeals the denial of his petition for post-conviction
relief from his conviction for aggravated sexual battery. He argues
that he was denied the effective assistance of counsel because his
divorce attorney, who thereafter became his initial trial attorney,
failed to attend a polygraph examination and advise petitioner of the
protocol, limitations, and requirements necessary to complete the
examination. The petitioner further asserts that he was denied
effective assistance of counsel by his second trial attorney because
this attorney was unprepared to argue a motion to suppress and failed
to adequately investigate factual allegations, review juvenile court
records, call critical witnesses, pursue leads that would have
established a conspiracy by the petitioner's wife to wrongfully
prosecute him, and let the petitioner review the brief filed on direct
appeal. Based upon our review, we affirm the post-conviction court's
denial of the petition.
http://www.tba.org/tba_files/TCCA/forresterdavidf.wpd

STATE OF TENNESSEE v. CHARLES RUFUS FOSTER, SR.
Court:TCCA
Attorneys:
Victoria L. DiBonaventura, Paris, Tennessee, for the appellant,
Charles Rufus Foster, Sr.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Eleanor Cahill, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals his conviction of rape and his ten-year
sentence. The defendant contends that the evidence is insufficient
to support the conviction, that the trial court erroneously allowed
the victim to testify, and that expert testimony should not have been
admitted into evidence. The defendant also contends that the trial
court erred in sentencing. After careful review, we conclude the
evidence is sufficient to support the conviction and the trial court
did not err. We affirm the conviction and the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/foster.wpd

STATE OF TENNESSEE v. EDWARD D. HANEY
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the appellant, State of Tennessee.
Edward C. Miller, District Public Defender, for the appellee, Edward
D. Haney.
Judge: WILLIAMS
First Paragraph:
The State appeals the trial court's suppression of twenty-five rocks
of cocaine seized from the defendant. Because the trial court "did
not feel comfortable" in elaborating the reason why the evidence
should be suppressed, we remand for the trial court to make findings
of fact and conclusions of law.
http://www.tba.org/tba_files/TCCA/haneyed.wpd

REDONNA HANNA v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Robert C. Brooks, Memphis, Tennessee, for the appellant, Redonna
Hanna.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Paul Hagerman, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The petitioner, Redonna Hanna, was convicted of three counts of
aggravated robbery, one count of especially aggravated robbery, one
count of aggravated burglary, and one count of first degree murder.
His convictions were affirmed on direct appeal. He filed a petition
for post-conviction relief, alleging that his trial counsel was
ineffective by not objecting to the trial court's instructions as to
criminal responsibility. Following an evidentiary hearing, the
post-conviction court dismissed the petition, and the petitioner
appealed. We affirm the dismissal.
http://www.tba.org/tba_files/TCCA/hannar.wpd

STATE OF TENNESSEE v. EVELYN HOLLY
Court:TCCA
Attorneys:
Robert Wilson Jones, District Public Defender; Tony N. Brayton,
Assistant Public Defender; Donna Armstard, Assistant Public Defender;
and James Rayford, Assistant Public Defender, for the appellant,
Evelyn Holly.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Kevin Rardin, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
Defendant, Evelyn Holly was convicted of second degree murder
following a jury trial. Defendant now challenges her conviction
arguing that the trial court erred in not suppressing her statement to
the police. Defendant also contends that the evidence is insufficient
to sustain her conviction of second degree murder. Specifically,
Defendant argues that the evidence showed that she and the victim,
Ronald Kyles, were engaged in mutual combat at the time of the killing
and requests this court to reduce her conviction to voluntary
manslaughter. After a thorough review of the record, we affirm
Defendant's conviction for second degree murder.
http://www.tba.org/tba_files/TCCA/holly.wpd

STATE OF TENNESSEE v. VOSS JOHNSON
Court:TCCA
Attorneys:
Brett B. Stein, Memphis, Tennessee, for the appellant, Voss Johnson.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Camille McMullen, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
Following a jury trial, Defendant, Voss Johnson, was convicted of two
counts of especially aggravated robbery, one count of attempted
voluntary manslaughter, and one count of second degree murder.
Defendant now appeals his convictions arguing that the trial court
erred in denying his motion to suppress and that the evidence is
insufficient to sustain his conviction for second degree murder based
on a theory of criminal responsibility. After a careful review of the
record, we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/johnsnv.wpd

RODRICK JOHNSON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Rodrick Johnson, Only, Tennessee, Pro Se (on appeal), and Ellsworth D.
Ware, III, Nashville, Tennessee (at trial), for the appellant, Rodrick
Johnson.
Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, the State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner, Rodrick Johnson, appeals the denial of his petition
for post-conviction relief, asserting that: (1) the post-conviction
court erred by failing to make findings and conclusions as to each
issue; (2) the jury instructions provided by the trial court lowered
the State's burden of proof; (3) the trial court erred in not
instructing as to the lesser-included offense of facilitation; and (4)
he was denied the effective assistance of counsel on appeal. We
affirm the order of the post-conviction court dismissing the petition.
http://www.tba.org/tba_files/TCCA/johnsonr.wpd

STEVE MASON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Hershell D. Koger, Pulaski, Tennessee, for the appellant, Steve Mason.
Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; and Mike Bottoms, District Attorney
General, for the appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
The petitioner, Steve Mason, brings the instant appeal of the
post-conviction court's denial of his petition for relief. The
petitioner stands convicted of first degree murder and attempted first
degree murder. In this appeal, he alleges that he is entitled to
post-conviction relief on the basis that the facts introduced at trial
are insufficient to support his convictions and because he received
ineffective assistance of trial counsel.
http://www.tba.org/tba_files/TCCA/masonst.wpd

STATE OF TENNESSEE v. TIM MATTINGLY
Court:TCCA
Attorneys:
William B. (Jake) Lockert, III, District Public Defender (on appeal);
Steve Stack, Assistant District Public Defender (at hearing); and L.
Broner McCoy, Ashland City, Tennessee (at hearing), for the appellant,
Tim Mattingly.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Robert S. Wilson, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The trial court found the defendant, Tim Mattingly, violated the terms
of his ten-year community corrections sentence. It ordered him to
serve three years "day for day" in the county jail before serving the
remainder of his ten-year sentence on community corrections. In this
appeal, the defendant argues the trial court acted without authority
in imposing this sentence. We conclude the trial court imposed an
illegal sentence and remand for further proceedings.
http://www.tba.org/tba_files/TCCA/mattingly.wpd

STATE OF TENNESSEE v. GARY W. YOUNG
Court:TCCA
Attorneys:
Dwight E. Scott, Nashville, Tennessee, for appellant, Gary W. Young.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and John Zimmermann, Assistant District Attorney General, for
appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
On May 21, 2001, the appellant, Gary W. Young, pleaded guilty to sale
of a controlled substance and possession of a controlled substance
within a thousand feet of a school. He received concurrent twenty-one
year sentences for each count. As part of the plea agreement the
appellant attempted to reserve a certified question of law to be
presented on appeal. See Tenn. R. App. P. 37(b)(2)(i). This question
concerns the propriety of a search. On June 19, 2001, the appellant
also attempted to withdraw his guilty plea pursuant to Tennessee Rule
of Criminal Procedure 32(f). The trial court denied the motion to
withdraw the guilty plea based on this Court's holding in State v.
Hall, 983 S.W.2d 710 (Tenn. Crim. App. 1998 overruled by State v.
Green, 106 S.W.3d 646 2003)). This appeal followed. After a review
of the record and the applicable authorities we are of the opinion
that the appellant has failed to properly certify an appeal to this
Court pursuant to Tennessee Rule of Appellate Procedure 37(b)(2)(i),
and this Court therefore lacks jurisdiction to consider the trial
court's denial of the appellant's motion to suppress. However, the
appeal of the denied motion to withdraw a guilty plea is properly
before this court, and this case must be remanded for consideration of
the motion in view of the Tennessee Supreme Court decision in State v.
Greene, 106 S.W.3d 646 (Tenn. 2003), which overruled State v. Hall.
Finally, the allegation concerning the legality of the appellant's
sentences, which has been raised for the first time on appeal, may be
presented to the trial court on remand for consideration as a ground
to allow withdrawal of the plea
http://www.tba.org/tba_files/TCCA/youngg.wpd

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